Opinion Analysis: “Gross governmental misconduct” is remarkable but harmless in United States v. Claxton, No. 17-0148/AF
CAAF decided the Air Force case of United States v. Claxton, 76 M.J. 356, No. 17-0148/AF (CAAFlog case page) (link to slip op.), on Thursday, July 6, 2017. Finding “gross governmental misconduct” in the failure to disclose the fact that two prosecution witnesses were confidential informants – and identifying by name the prosecutors, the chief of justice (senior prosecutor), the staff judge advocate (commander’s lawyer), and the commander – a four-judge majority finds the nondisclosure to be harmless and affirms the convictions and the decision of the Air Force CCA.
Judge Stucky writes for the court joined by all but Chief Judge Erdmann, who dissents and would reverse the convictions.
Air Force Cadet Claxton was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of wrongful sexual contact of one alleged victim, attempted abusive sexual contact and assault consummated by a battery of a second alleged victim, and two specifications of assault consummated by a battery for a physical altercation with two other cadets, in violation of Articles 80, 120, and 128, UCMJ. He was sentenced to confinement for six months, total forfeitures, and a dismissal.
The charges involved two separate encounters between Claxton and female Air Force Academy cadets, and a physical altercation that occurred after Claxton was confronted by other cadets about one of the encounters. Numerous witnesses testified against Claxton, including two cadets who were also confidential (undercover) informants for the Air Force Office of Special Investigations (AFOSI). But their informant status was not disclosed to the defense despite a specific discovery request for details about any confidential informants. Slip op. at 2. After trial, however, one of the informants disclosed his status to a newspaper, which printed the fact. CAAF then ordered a DuBay (post-trial fact-finding) hearing, after which the Air Force CCA reviewed the matter and found a Brady violation but no prejudice to Claxton. CAAF then granted review to determine:
Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.
(note: CAAF also granted a Hills trailer issue, but subsequently vacated that grant. See slip op. at 1 n.1).
Criticizing everyone from the trial counsel (who failed to disclose) to the then-acting Judge Advocate General of the Air Force (who mishandled an Article 73 petition for a new trial based on the failure to disclose), Judge Stucky finds that “it is profoundly disturbing that officers of the court would engage in such conduct.” Slip op. at 10. Yet this great disturbance wins Claxton nothing, as the majority is convinced that the circumstances of the case leaves “no reasonable likelihood” that the fact that two witnesses were confidential informants could have affected the findings or sentence. Slip op. at 9. Chief Judge Erdmann, however, finds that “due to the nondisclosure, the defense was denied the ability to pursue a strategic option and present their best defense.” Diss. op. at 3.
The majority concludes that nondisclosure was harmless because “the informants’ testimony was relatively unimportant and was for the most part cumulative with that of other witnesses,” with respect to one of the sexual allegations, and because the testimony of one informant “was corroborated by several other eyewitnesses who were not informants and by Appellant’s admission” for the other allegations. Slip op. at 9. This conclusion is based on the following standard:
In military practice, “[w]here an appellant demonstrates that the Government failed to disclose discoverable evidence in response to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt.” United States v. Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004) (concluding that shifting the burden to the government “reflects the broad nature of discovery rights granted the military accused under Article 46[, UCMJ, 10 U.S.C. § 846 (2012)]”). “Failing to disclose requested material favorable to the defense is not harmless beyond a reasonable doubt if the undisclosed evidence might have affected the outcome of the trial.” United States v. Coleman, 72 M.J. 184, 187 (C.A.A.F. 2013).
Slip op. at 5-6 (alteration in original). Here the majority finds “no reasonable likelihood that this evidence [the informant status of two witnesses] could have affected the judgment,” and so it is harmless beyond a reasonable doubt and the convictions and sentence are affirmed.
But Chief Judge Erdmann takes a different approach. While he “concur[s] with the majority’s comments regarding the Air Force’s gross misconduct in the prosecution of this case,” diss op. at 1 n.1, he applies a different test for prejudice:
I believe there is a bigger picture that the majority does not address. In nondisclosure cases, we have considered the cumulative effect of the nondisclosure rather than merely speculating as to what the result would have been without the confidential informants’ testimony. See United States v. Stellato, 74 M.J. 473, 490 (C.A.A.F. 2015). In conducting this assessment, we have adopted the following analysis: (1) whether the nondisclosure hampered or foreclosed a strategic option; (2) whether the nondisclosure hampered the ability to prepare or present its case; (3) whether the nondisclosure substantially influenced the factfinder; and (4) whether the nondisclosure would have allowed the defense to rebut evidence more effectively. Id. (citations omitted). This court “need not conclude that Appellant’s defense would have succeeded. Instead the inquiry should focus on whether the military judge’s ruling essentially deprived Appellant of [his] best defense that may have tipped the credibility balance in Appellant’s favor.” United States v. Collier, 67 M.J. 347, 356 (C.A.A.F. 2009) (alteration in original) (internal quotation marks omitted)
Diss. op. at 1-2. This is a much broader view than that employed by the majority, and it leads to a different result as Chief Judge Ermann finds all four prongs of the Stellato assessment to be satisfied.
For the first prong, Chief Judge Erdmann notes that Claxton’s appellate defense counsel argued that the informants may have set Claxton up to commit the offenses, a defense that was hampered or forclosed by the nondisclosure. “While this ‘set up’ defense was certainly not a ‘slam dunk,’ it may have been the best defense available to Claxton – had he known it was available.” Diss. op. at 2.
For the second and fourth prongs: “Despite the government knowing that two of the witnesses were confidential informants, it deceptively leveraged the defense and the panel’s ignorance of the informants’ status to bolster the credibility of the victims and witnesses. This information hampered Claxton’s ability to prepare and present his case and, had it been disclosed, would have allowed the defense to rebut the government’s arguments more effectively.” Diss. op. at 3.
Finally, for the third prong Chief Judge Erdmann explains that while “we have no way of knowing” how the members would have reacted to learning that “two principal government witnesses, who had been involved in all the incidents, were government agents,” he concludes that “certainly it would have had some effect on their consideration of the government’s case.” Slip op. at 3.
Accordingly, Chief Judge Erdmann finds that “the nondisclosure was not harmless beyond a reasonable doubt” and he would reverse “and remand the case for a new trial.” Diss. op. at 4.
Claxton’s conviction survives but the Air Force JAG Corps hardly escapes unscathed. In the concluding section of the majority opinion Judge Stucky writes:
[W]e cannot allow the gross governmental misconduct which occurred in this case to escape unremarked. It is unclear from the record whether the trial counsel were aware of Cadet Thomas’s status, but it was their “‘duty to learn of any favorable evidence known to the others acting on the government’s behalf …, including the police’” and disclose it to the defense. Strickler, 527 U.S. at 281 (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). Here, there is no evidence of record that the trial counsel made any attempt to inquire as to the status of Government witnesses as required by the defense discovery request.
Of additional concern is the fact that responsible judge advocates, including the staff judge advocate and the chief of justice, knew that Cadet Thomas was a CI and either did not inform the trial counsel or, if they did, did not ensure that the trial counsel performed their duties under Brady. We do not know whether these officers acted at the behest of AFOSI, so that that agency could continue its undercover activities, or for some other reason. In any event, it is profoundly disturbing that officers of the court would engage in such conduct. The fact that, under the applicable standard, the Government has managed to salvage this conviction cannot erase the blot on the Air Force legal system that such conduct must cause.
Slip op. at 10.
Nevertheless, in a results-oriented institution like the military, and at a time when Government bloopers are commonplace, it’s easy to wonder if the Air Force legal system will even see (nevermind acknowledge) a blot over this salvaged conviction. Instead, it might just think: where’s the prejudice?
• AFCCA’s first opinion
• Blog post: CAAF orders DuBay hearing
• AFCCA opinion on remand
• Blog post: CAAF grants review
Appellant’s brief (sealed)
• Appellee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief (not posted / sealed)
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis